Thursday, 12 June 2014

In its 2013 Saskatchewan v. Whatcott[1] decision, the Supreme Court of Canada (SCC) unanimously upheld the constitutionality of the hate speech prohibition contained in section 14(1)(b) of The Saskatchewan Human Rights Code.[2]

The impugned provision makes it illegal to publish printed material that exposes or tends to expose any person or class of persons to hatred on the basis of a prohibited ground of discrimination. After undergoing a Charter[3] analysis, the SCC held that section 14(1)(b) of the Code infringes sections 2(b) freedom of expression and 2(a) freedom of conscience and religion but that this infringement is demonstrably justified under section 1. The SCC has again shown itself unwilling to defend a broadly construed constitutional right to freedom of expression.

But in the end, what is surprising about the Whatcott decision is not the result. It’s surprising because it is unanimous.

PROCEDURAL HISTORY

In 2001 and 2002, William Whatcott, a self-proclaimed anti-gay activist produced and distributed a variety of offensive flyers in Regina and Saskatoon. The flyers contained his opinions regarding homosexuality. Four recipients of Whatcott’s flyers filed complaints with the Saskatchewan Human Rights Tribunal (Tribunal) alleging that the flyers promoted hatred against individuals on the basis of their sexual orientation.

The Tribunal held that four of Whatcott’s flyers contravened section 14(1)(b) of the Code. Section 14(1) reads:

14(1) No person shall publish or display, or cause or permit to be published or displayed, on any lands or premises or in a newspaper, through a television or radio broadcasting station or any other broadcasting device, or in any printed matter or publication or by means of any other medium that the person owns, controls, distributes or sells, any representation, including any notice, sign, symbol, emblem, article, statement or other representation:

…

(b) that exposes or tends to expose to hatred, ridicules, belittles or otherwise affronts the dignity of any person or class of persons on the basis of a prohibited ground.

In 2007, the Saskatchewan Court of Queen’s Bench affirmed the Tribunal’s decision.[4] In 2010, the Saskatchewan Court of Appeal (SKCA) allowed the appeal concluding that none of Whatcott’s flyers satisfied the high legal standard set for “hatred” by the SCC’s jurisprudence and that Whatcott therefore had not violated section 14(1)(b).[5] At no time were the constitutional arguments advanced by Whatcott successful in any of these decisions.

THE 1990 TAYLOR DECISION

Both Saskatchewan courts recognized they were bound by the SCC’s seminal Canada v. Taylor[6] decision. It was the definition of “hatred” as set out in Taylor that the SKCA held Whatcott’s flyers failed to satisfy.

Taylor concerned the constitutionality of the hate speech prohibition in section 13(1) of the Canadian Human Rights Act.[7] In that decision, the SCC found that section 13(1) is aimed only at expression involving feelings of an “ardent and extreme nature” and “unusually strong and deep-felt emotions of detestation, calumny and vilification.”

John Ross Taylor publicly distributed cards inviting calls to a phone number that was answered by a recorded message. The Canadian Human Rights Commission (CHRC) received complaints about the anti-Semitic content in the message. The CHRC held that the messages were discriminatory under section 13(1) and ordered Taylor to cease the practice. Taylor challenged the constitutionality of section 13(1), arguing that it violated his freedom of expression.

Section 13(1) was repealed in 2013, but in 1990 it read:

It is a discriminatory practice for a person or a group of persons acting in concert to communicate telephonically or to cause to be so communicated, repeatedly, in whole or in part by means of the facilities of a telecommunication undertaking within the legislative authority of Parliament, any matter that is likely to expose a person or persons to hatred or contempt by reason of the fact that that person or those persons are identifiable on the basis of a prohibited ground of discrimination.

On appeal to the SCC, four of the seven justices upheld section 13(1). In the years following, the Taylor decision was severely criticized—fuelled in no small part by the dissenting opinion of Justice McLachlin (as she was then).

In her reasons, McLachlin, J. canvassed many of the problems with hate speech prohibitions as contained in human rights legislation. For instance, there are problems of subjectivity. The word “hatred” is an ambiguous, emotionally charged term indicating a psychological state and it is capable of a wide range of meanings amongst different people. Lacking any definition in the statute and arguably incapable of sufficiently precise definition, it must inevitably function as a proxy for the personal and political views of the judiciary.

Also, since the hate speech prohibition in section 13(1) lacks any intent or harm requirement, it is entirely possible that someone be punished under this provision for acts that were never intended to be discriminatory and that caused no one any harm or actual discrimination.

The provision’s inherent subjectivity and overbreadth make it impossible to know beforehand whether any particular expression is illegal or not. And as a result, the prohibition produces a chilling effect on the free expression of ideas.

In the years following Taylor, McLachlin, J.’s dissent seemed to be winning broad support.

In December 2007, Maclean’s magazine and author Mark Steyn were the subjects of human rights complaints by Mohamed Elmasery of the Canadian Islamic Conference before the Canadian, Ontario, and British Columbia Human Rights Tribunals for publishing 18 allegedly “Islamophoic” articles. And between 2006 and 2008, Ezra Levant was the subject of an Alberta human rights complaint made by Syed Soharwardy of the Islamic Supreme Council of Canada because Levant published the infamous Jyllands-Posten cartoons of Muhammed in his Western Standard magazine. None of these complaints were successful, but both Steyn and Levant became out-spoken critics of hate speech prohibitions as contained in human rights legislation—with Levant publishing a book on the topic.[8]

In 2008, Professor Richard Moon of the University of Windsor’s Faculty of Law released a report[9] commissioned by the CHRC on section 13 recommending that the hate speech prohibition be repealed and that,

We must develop ways other than censorship to respond to expression that stereotypes and defames the members of an identifiable group and to hold institutions such as the media accountable when they engage in these forms of discriminatory expression.[10]

In 2009, the Canadian Human Rights Tribunal refused to apply section 13 of the Canadian Human Rights Act against Mark Lemire for discriminatory comments allegedly made by a third party on a website administered by Lemire. The Tribunal held that section 13 is an unjustifiable violation of freedom of expression because it permits the government to penalize individuals with large monetary fines for merely saying something offensive or unpopular.[11]

Over this same period of time, the work of various Canadian civil liberties organizations, like the British Columbia Civil Liberty Association (BCCLA), the Canadian Civil Liberties Association (CCLA), and the Canadian Constitution Foundation (CCF), brought the censorship of Canada’s various hate speech provisions as contained in human rights legislation under public scrutiny.

In a 1998 position paper of the BCCLA titled “Freedom of Expression in Public Spaces”, the author wrote:

Freedom of expression is not simply an abstract principle. It is a fundamental part of any democratic society. It is also the best weapon we have to combat hateful expression. It is more effective than censorship. If, as a society, we choose to abandon it, we become something less than a democracy. Tolerating speech with which we disagree is thus not only the surest way to minimize the effects of hatred, it is also the surest way we have of supporting democracy itself.[12]

In 2008, Alan Borovoy, the founder of the CCLA was quoted in the Edmonton Journal as saying,

Groups that bash gays, women or religious organizations may be repugnant, but democracies must allow them to speak freely…[13]

A 2008 report published by the CCF argued:

Laws and policies which restrict freedom of expression have a dangerous “chilling effect” which leads to self-censorship among citizens. A restriction on speech affects not only those caught and prosecuted, but also those who may refrain from saying what they would like to because of the fear that they will be caught. Thus, restrictions on freedom of expression inhibit worthy minority groups and individuals from saying what they desire to say for fear that they might be prosecuted.[14]

This author was highly critical of the Taylor decision’s treatment of freedom of expression in a 2012 paper in the C2C Journal.

Subsection 13(1) is too great an interference with freedom of expression, because its intended benefit pales in comparison to the harm it produces. The free expression of ideas, especially those that are unpopular, is of foundational importance in “a free and democratic society”… Freedom of expression is a fundamental human right that is necessary for “a free and democratic society” because it protects individuals from the tyrannies of the state and the majority.[15]

Each of these aforementioned examples provided advocates for liberty and limited government the hope that the Whatcott appeal would give the SCC the an opportunity to reconsider the constitutional issues previously decided in Taylor.

WHATCOTT—a restatement of Taylor

When its decision was released on February 27, 2013, the SCC held that two of Whatcott’s impugned flyers contravened the section 14(1)(b) of the Code, but that the other two did not.

What came as a complete surprise advocates for liberty and limited government was that instead of issuing a highly divided decision—like the Taylor court—the SCC unanimously upheld the constitutionality of section 14(1)(b) of the Code finding only that portion which reads “ridicules, belittles or otherwise affronts the dignity” as unconstitutional.[16] In reaching this conclusion, the SSC held that section 14(1)(b) infringed Whatcott’s Charter rights to freedom of expression[17] and freedom of religion,[18] but that these infringements were justified under section 1.[19]

Of the four flyers at issue, the SCC found the Tribunal’s decision that the first two flyers exposed or tended to expose gays to hatred reasonable. Among other things, those two flyers contained Whatcott’s assertions that gay and lesbian teachers use “dirty language to describe lesbian sex and sodomy to their teenage audience”,[20] and that “Sodomites are 430 times more likely to acquire Aids and 3 times more likely to sexually abuse children”.[21]

The SCC found that the remaining two flyers did not to satisfy the legal definition of hatred. These flyers contained photocopies of personal ads and Whatcott’s handwriting that read,[22]

Saskatchewan’s largest gay magazine allows ads for men seeking boys!;

and,

If you cause one of these little ones to stumble it would be better that a millstone was tied around your neck and you were cast into the sea.

Writing for the unanimous SCC, Rothstein, J. said,

...in my view the Taylor definition of “hatred”, with some modifications, provides a workable approach to interpreting the word “hatred” as it is used in prohibitions of hate speech.[23]

In his subsequent discussion, Rothstein, J. made three main prescriptions to ensure that section 14(1)(b) of the Code operated within the limits placed on all legislation by the Charter.

First, “hatred” must be assessed objectively, not subjectively. The courts must pose the question whether “when considered objectively by a reasonable person aware of the relevant context and circumstances, the speech in question would be understood as exposing or tending to expose members of the target group to hatred.”[24] During the course of an assessment, the adjudicator is to place his or her personal views aside.[25] Shifting the analysis away from the speaker’s intent allegedly helps to answer the criticism that “hatred” is an unworkable as a legal test on account of its irremediable subjectivity.

Second, “hatred” must be restricted to only those extreme manifestations of emotion described by the words “detestation” and “vilification”.[26] Expression that exposes vulnerable groups to detestation and vilification must be far more than merely discrediting, humiliating, or offending. It must vilify and seek to abuse, denigrate, or delegitimize a protected group or person as lawless, dangerous, or unacceptable.[27]

In the SCC’s opinion, this standard will yet permit offensive and repugnant speech provided that it does not incite the high level of abhorrence necessary to satisfy the definition of “hatred”.[28] And building on this definition, human rights legislation should not be considered to aim at the elimination of the emotion of hatred from human experience. Instead, it aims to eliminate extreme forms of expression that have the potential to inspire the illegal discriminatory treatment of protected groups.[29]

Third, adjudicators are to focus on the effect of the expression—i.e. whether the impugned expression is likely to expose a protected group to hatred. The repugnancy of the ideas expressed and the intent of the individual(s) expressing those ideas are not sufficient on their own.[30] It is the mode of public expression and the effect that this mode of expression may have—not the ideas themselves—that must concern adjudicators.[31] And this is where the correct objective test must be applied—would a reasonable person consider the expression vilifying a protected group or individual as having the potential to lead to discrimination?[32]

Applying this to Whatcott, the SCC found in two short paragraphs that section 14(1)(b) of the Code infringed Whatcott’s rights to freedom of expression and freedom of religion. Nearly all the remaining analysis in the decision centered on how these infringements are justified under section 1 of the Charter. In the end, the SCC held that Saskatchewan government’s objective in enacting a hate speech prohibition was pressing and substantial[33] and proportional[34]—thereby satisfying the Oakes[35] test.

In dealing with the criticism that the impugned prohibition requires no intent to discriminate, Rothstein, J. offered no new analysis and merely quoted a portion of the Taylor decision before dismissing the criticism in two sentences.

The preventative measures found in human rights legislation reasonably centre on effects, rather than intent. I see no reason to depart from this approach.[36]

Regarding the criticism that the Code requires no proof of actual harm, Rothstein, J. held that establishing a causal link between an expressive statement and any resulting hatred suffered is too onerous a burden for a complainant to bear, and as such, preventative measures—like prohibiting speech deemed hateful without proof of harm—are justified.[37]

And regarding the criticism that the Saskatchewan legislature has provided no defences—including that the content of any impugned expression is true—to individuals accused of publishing hate materials, Rothstein, J. said,

[139] Critics find the absence of a defence of truth of particular concern, given that seeking truth is one of the strongest justifications for freedom of expression. They argue that the right to speak the truth should not be lightly restricted, and that any restriction should be seen as a serious infringement.

[140] I agree with the argument that the quest for truth is an essential component of the “market of ideas” which is, itself, central to a strong democracy. The search for truth is also an important part of self-fulfillment. However, I do not think it is inconsistent with these views to find that not all truthful statements must be free from restriction…

Rothstein, J. then dismissed this criticism since “even truthful statements may be expressed in language or context that exposes a vulnerable group to hatred.”[38]

WHATCOTT—the redaction of the Taylor dissent

In striking contrast with the 1990 Taylor decision, the 2013 Whatcott decision is unanimous and monolithic—there is no dissent. The SCC has closed ranks and will no longer broach alternatives. This means that Chief Justice McLachlin’s Taylor dissent has effectively been redacted. The problems canvassed in Taylor have not been satisfactorily resolved in Whatcott—all we get is the SCC’s undivided assertion that the prohibition is constitutional when applied in a manner complying with the three prescriptions discussed above. But does this imply that there never was a problem? And most importantly, what has happened in the intervening 20+ years to change Chief Justice McLachlin’s mind?

It wasn’t always this way. Freedom of expression and free speech both have long been recognized in Canadian law. The right to freedom of expression in Canada was not created by the Charter. Canadians enjoyed a right to free speech and freedom of expression prior to 1982.

Before she became Chief Justice, Justice McLachlin said in R. v. Keegstra that “freedom of speech is a fundamental Canadian value”,[39] and

Freedom of speech and the press had acquired quasi-constitutional status well before the adoption of the Charter in 1982.

She further said that,

The enactment of s.2(b) of the Charter represented both a continuity of [this] tradition, and a new flourishing of the importance of freedom of expression in Canadian society.[40]

Quoting from A. W. MacKay, "Freedom of Expression: Is It All Just Talk?",[41] Justice McLachlin went on to affirm that,

Freedom of expression was not invented by the Charter of Rights and Freedoms...

Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.[43]

In other words, as the various Canadian civil liberties organizations have been arguing, the continued existence and flourishing of our free society is dependent upon the right of each individual to freely express his or her ideas without fear of reprisal. And regardless of how difficult the SCC says it is to satisfy the legal definition of “hatred”, the threat posed by Canada’s various hate speech prohibitions—of which Saskatchewan’s section 14(1)(b) is an example—does have a chilling effect on freedom of expression.

And there’s a simple and ironic fact that cannot be overlooked in all of this. If Whatcott is on a hate campaign, Saskatchewan’s hate speech prohibition has provided him with a powerful means to disseminate his views. Each judicial decision has reproduced and circulated his materials and broadened his public exposure. Had no complaint been made about Whatcott’s flyers in 2001 and 2002, they would have faded into obscurity and Whatcott likely would not have received national media coverage.

At this stage it’s entirely likely that Whatcott will be elevated to the status of folk-hero by those who share his prejudices. Instead of facing a legal prosecution, lending credence to the appearance of martyrdom, Whatcott should have been ignored or debated. After all, it’s best not to silence bigots by the application of force—let them speak, freely. As the old proverb says, even a fool who keeps silent is considered wise.

There is a second irony also. It has not been that long since homosexuality was considered repugnant to the majority of Canadians which resulted in the marginalization of homosexuals within our society. This has changed in part because of the recognition by our governments and courts that freedom of expression without fear of legal reprisal is a fundamental human right. Permitting the free expression of what was once considered repugnant has resulted in greater freedom and legal rights for gay individuals. Thus, to protect a broadly construed individual right to freedom of expression is to preserve the very conditions that made the current more tolerant state of affairs possible.

The SCC has shown itself unwilling to defend a broadly construed constitutional right to freedom of expression as desired by advocates of liberty and limited government from across the political spectrum.

Section 13 of the Canadian Human Rights Act was repealed in 2013 in the months following the Whatcott decision. Saskatchewan’s prohibition remains on the books.

This Case Comment was published in the Alberta Law Review in the Spring of 2014.

Friday, 9 May 2014

One of the easiest ways for a municipal politician to keep his constituents happy is to give them what they want. Sometimes this means enacting popular yet dubious bylaws.

Perhaps this is the impetus behind the Town of Airdrie's push to amend its Public Behaviour Bylaw to prohibit bullying. After all, nearly everyone will rally behind politicians who enact laws to protect children from harm, regardless of those laws' faults.

And Airdrie is not alone. Many other municipal governments in Alberta have already enacted similar bylaws. For instance, Consort, Grand Prairie, Hanna, and Rocky Mountain House each already prohibit bullying. Oyen's Town Council has discussed it. There are likely many others.

Each of these bylaws is similar. Bullying will not be tolerated at any place in town to which the public has access. In some municipalities, bullies can be fined up to $1,000 plus costs, and be imprisoned for six months on default of payment. These are significant penalties.

Regardless of their goal, each of these bylaws is flawed. They are redundant and viciously subjective, they make some acts illegal that they shouldn't, and they are outside of the jurisdiction of any Alberta municipality.

Consort's bylaw considers "harassment of others by the real or threatened infliction of physical violence and attacks" and the "extortion or stealing of money and possessions" as bullying. But harassment, extortion, and theft are already illegal. How will enacting yet another law solve the problem when there's an apparent lack of will to enforce current laws?

Grand Prairie's bylaw defines bullying as an "objectionable or inappropriate comment, conduct or display" directed at an individual "which causes or is likely to cause physical or emotional distress". Simply put, this is vague and hopelessly subjective. By relying on words like "objectionable" and "inappropriate" and requiring those enforcing the law to find the line between behaviours that are likely to cause emotional distress and those that are not, this bylaw will inevitably function as a proxy for the personal views of those enforcing it. This could easily make all sorts of otherwise excusable behaviours illegal. For example, a fine could be issued for a single hurtful comment uttered in anger even though "bullying" is generally understood to mean repeated hurtful behaviour.

Rocky Mountain House's bylaw, like the others, applies in all locations that the public has access, including schools, public parks, recreational facilities, and even sports grounds. Don't taunt the umpire at a baseball game in Grand Prairie--even in jest--because if it could be construed as likely to cause emotional distress and you could be fined for single offhanded remark. And while in Hanna, it's best to avoid verbally taunting your opponents if you are playing in the game.

At their core, these bullying bans are unadulterated attempts to restrict freedom of expression and are therefore outside of municipal jurisdiction. Alberta's Municipal Government Act lists three municipal purposes, none of which grants municipalities the power to enact laws for the sole purpose of restricting expression. Further, the Province of Alberta cannot delegate to municipalities the authority to restrict expression. Under the Constitution Act, 1867, provincial laws may only incidentally restrict expression provided those laws are otherwise within provincial jurisdiction.

But it's not all bad. There is some good in these bylaws. Each demonstrates that bullying is not acceptable and should not be tolerated, and issuing fines may be a quick and efficient means to curb hurtful behaviour. And to be clear, no one endorses or excuses real bullying. It can have devastating and lasting effects, particularly on children.

Regardless, the flaws in these bylaws cannot be ignored. Each needlessly duplicate other laws, some make excusable and non-reoccurring acts illegal, and all overstep municipal and constitutional authority. Think of the problem this way. What these bylaws do--they should not. What they should do--they cannot. Relying on bad laws to prevent bullying is similar to believing that two wrongs somehow make a right.

This piece was first published in the Huffington Post on September 24, 2013.

On September 30, 2005, the Danish newspaper Jyllands-Posten published the now notorious cartoons of the prophet Muhammad. The cartoons were republished by newspapers around the world and over 200 people died as protests and riots erupted in response. Prime Minister Stephen Harper issued a statement that he regretted that Canadian newspapers had also published the cartoons, but that Canadians had a right to freedom of expression.

On February 19, 2013, the Canadian government opened the Office of Religious Freedom within the Foreign Affairs and International Trade department and mandated the new office to protect and advocate for religious minorities, oppose religious hatred and intolerance, and promote the Canadian values of pluralism and tolerance around the world.

But there is some irony here. While the Canadian government publicly defends the freedom to publish cartoons that mock a religious figure and looks abroad to protect religious minorities from oppression, section 296 of the Criminal Code makes it an indictable offence to publish blasphemous materials in Canada. If an accused is convicted under section 296, he or she is liable for up to two years of imprisonment. In other words, Canada is promoting tolerance and the freedom to speak freely about religion abroad while restricting each domestically.

Most Canadians probably do not know what blasphemy is, let alone that publishing blasphemous materials is a criminal offence. To blaspheme is to insult or show contempt or a lack of reverence for God or other things sacred.

Originally, the prohibition on blasphemous libel was specifically tied to publishing materials that brought the Christian religion into disrepute. The courts held it to be a criminal offence to publish any profane words vilifying God, Jesus Christ, the Holy Ghost, the Bible, or Christianity if done with the intent to shock or insult believers, or mislead the ignorant and unwary. Even though the most recent decision on section 296 arguably generalized the prohibition so that it may now be illegal to blaspheme other religions as well, this has not been tested in court and the prohibition has fallen into disuse.

It should be surprising that Canada has any sort of law prohibiting blasphemy. First, blasphemy is everywhere. It is not difficult to find all sorts of published material that break this law -- movies, music, books, magazines, video games, visual art, etc. Second, the Canadian Charter of Rights and Freedoms guarantees everyone the right to freedom of expression -- this includes the right to speak freely about religion. And third, any sort of restriction on what the government will allow us to say on religious topics seems a potentially dangerous limitation on freedom of expression.

There have been few blasphemous libel prosecutions in Canada, and none since the 1930s. It is likely that section 296 is effectively dead even though it remains in the Criminal Code.

But being effectively dead is not truly dead. The UK had a similar criminal prohibition with much the same story as Canada's -- it languished unused for a significant period of time. Yet in the 1979 case of Whitehouse v. Lemon, Mary Whitehouse resurrected the UK's blasphemous libel prohibition in a successful so-called "private prosecution." The accused was convicted but did not have to serve the prison term. The UK repealed its blasphemy law in 2008.

Aside from the previous point that effectively dead laws are not guaranteed dead, there are other reasons to repeal section 296.

First, the continued existence of a prohibition on blasphemy places Canada in an awkward and hypocritical position when it criticizes other countries of religious intolerance, and more so now that Canada has an Office of Religious Freedom intended to promote religious tolerance. Remember that famous admonition to take the plank out of your own eye first?

And second, there is no certainty that the Charter's guarantee of freedom of expression will offer any protection to an individual accused of blasphemous libel. That remains an unanswered question yet to be tested in court. Sadly, there are cases that refer to section 296 as a potentially justifiable violation of freedom of expression, and there is no shortage of cases where the courts have deferred to the government and upheld restrictions on speech. The answers to such questions are inherently uncertain and court decisions can often yield surprising results.

For these reasons, it's best to repeal section 296 rather than to leave it in force and assume that it will never be used for ill-purposes in the future.

This piece was first published in the Huffington Post on October 1, 2013.

The currently proposed legislation is a more palatable but still troubling restatement of the unpopular Bill C-30 — the Protecting Children from Internet Predators Act. That bill, tabled in February 2012, mentioned neither children nor predators and was likely so-named only to sway the public toward accepting the legislation. It attempted to do precious little of what its title purported, mostly dealing with giving the police new powers — including making it mandatory for Internet service providers to disclose subscriber information to police without court oversight.

The public saw through the rhetoric and the outcry was immediate. Organizations opposing undue state intrusion on individual liberties recognized this as an unwarranted expansion of police powers to snoop on Canadians.

The outcry was merited. After all, the best way to evaluate legislation is to examine how it can be abused, not what the government says its goals are. In the end, Bill C-30’s flaws were too great and it never reached a second reading in the House of Commons.

With Bill C-13, the government is at it again.

Debate around Bill C-13 has cast it as dealing with cyberbullying — especially relevant after the tragic stories of Amanda Todd and Rehtaeh Parsons. The cyberbullying label is less disingenuous than the previous legislation’s title — Bill C-13 does make it illegal to distribute intimate images without consent. But just like Bill C-30, it deals with far more. Of the 60 plus pages in Bill C-13, the majority grant new powers to police and do not deal with cyberbullying.

Peter MacKay, the current justice minister, justifies this as a modernization of the Criminal Code. In a news release, the Department of Justice says Bill C-13, “would ensure that the same type of information that is currently available to law enforcement agencies for telephone calls would be available to police for newer technology such as computers, smart phones and the Internet.”

In fairness, there are some important differences between Bill C-13 and the failed Bill C-30, and many of the most egregious opportunities for undue state intrusion have been removed. For example, gone is Bill C-30’s requirement that telecommunications service providers have real-time data intercept capacity. And the mandatory disclosure of subscriber information to police without court oversight appears to be gone, too.

But appearances can be deceiving.

Buried within Bill C-13 is a clever mollifying of Bill C-30’s mandatory disclosure provision. The legislation clarifies that the police may request the voluntary disclosure and preservation of data or documents, and that someone in possession of that information can choose to comply with the police request, provided that it is not otherwise illegal to do so.

This alone seems innocuous. But the very next provision says that anyone who voluntarily provides such information to police upon request is absolved of all criminal and civil liability for the disclosure.

This absolution is problematic because it undermines the incentive to await court oversight before disclosing information to the police. Without the fear of incurring liability, Internet service providers possessing information wanted by the police may be more likely to comply with baseless disclosure requests. Fishing expeditions and snooping may become more common. Further, it’s not unreasonable to question whether a so-called voluntary disclosure can ever be completely without coercion, especially when you risk losing the goodwill of police.

Even though protecting Canadians from the harms of cyberbullying may be a laudable goal, we must ask how these new police powers in Bill C-13 could be abused. The mandatory disclosure provision from Bill C-30 may be gone, but Bill C-13 contains a subtle means of accomplishing much the same. And we should not be too quick to give up our right to privacy, because once we do, it will be difficult to get back.

Friday, 5 July 2013

On June 27, 2013, the federal government released a summary report of its consultations with stakeholders regarding payment for plasma donations. Meanwhile, a company called Canadian Plasma Resources has constructed two privately owned clinics in Toronto that await approval prior to paying donors for their blood plasma.

Right on cue, the union representing employees at Canadian Blood Services (which has a government-granted monopoly on whole blood collection in Canada, outside of Quebec) proclaimed that safety will somehow be jeopardized if plasma is collected by anyone other than a public facility. Other opponents have attempted to sway public opinion by arguing that payment for plasma is somehow exploitative. Both criticisms are smoke-and-mirrors. I know from experience.

I have the blood that everyone wants. I am heterosexual, monogamous, and in good health with no underlying medical conditions. I don’t travel to regions of the world where strange infections persist. I’ve had no recent surgeries or dental work. I take no drugs. And I rarely—if ever—get sick. Oh yes, I have no fear of needles.

Despite these ideal attributes, I rarely donate. The entire process is a bother. It inevitably consumes the most productive hours of the day. Even though it involves only a small measure of discomfort, it always seems to negatively impact upon my work and personal endeavors. For me, altruism alone is not a sufficient incentive.

But there was a time in my life when I was attending school in the US, living off loans and struggling to pay the bills. Financially, those were stressful times. That’s why I was delighted by the opportunity to earn $45 per week.

Down the street from my budget apartment was a private medical clinic that collected plasma. The clinic gave first-time donors a thorough health examination. And after a lengthy interview to assess risk factors, donors who qualified were permitted to give plasma twice a week. The first visit in each seven-day period earned me $20, and the second earned $25.

I like to think that my plasma donations helped someone who needed it. Although I can’t claim to have had purely altruistic motives, I doubt the recipient of the life-saving medical products my plasma was used to create cared much about my motivation.

On other hand, the money was a boon for me. It meant that I could afford better food, put gas in my car, and maybe even go on an occasional evening out with my wife. And just for giving plasma—something that regenerates quickly. This is why it annoys me when I hear the word “exploitation” bandied about by those who oppose paying donors. Being paid to give plasma was a great help to me at that time in my life. And I am certain that it could be for others too. There is simply nothing exploitative about it at all.

First, I was in no way being abused by those paying me—if that’s what is meant by “exploit”, the criticism is ludicrous. The plasma was mine. The money was theirs. They wanted my plasma and I wanted their money, so we came to a mutually beneficial agreement to exchange the two. We both got what we wanted. No abusive exploitation.

Second, if anything, it was me doing the exploiting. Even though I made an effort to lead a healthy lifestyle—eating quality foods and exercising, while avoiding tobacco, alcohol, and the like—many of the physical characteristics that made me a good candidate were given me by my parents. Yet I reaped the benefit. I exploited this resource.

Third, how is paying someone for plasma more exploitative than offering no compensation? With or without payment, plasma donations are always voluntary. If either is exploitative, expecting donors to give plasma without payment—perhaps by inducing guilt or shame—seems more so to me.

The concern regarding safety is a sham—most plasma available in Canada already comes from donors paid in private clinics. Health Canada says approximately 70% of the plasma products available in Canada originate from such donors. Most of them are Americans. So either demand for plasma products in Canada outstrips the capacity of Canadians to donate, or Canadians have insufficient incentive. My experience makes me suspect the latter.

Evidently, altruism alone cannot supply all the blood products that Canadians need. It was the financial incentive that motivated me to donate, and my donations likely saved lives. That’s a win-win solution that should not be rejected under pressure from vested interests.

On June 19th, comedian Guy Earle lost his appeal of a 2011 BC Human Rights Tribunal decision. The Tribunal found that Earle discriminated against Lorna Pardy during an open mic event for amateur stand-up comics. The story of what happened is difficult to piece together, but it seems that Pardy heckled Earle and he responded by making insulting comments regarding her sexual orientation. The confrontation escalated to the point where Pardy threw a glass of water in Earle’s face. The Tribunal ordered Earle to pay Pardy $15,000 for injury to her “dignity, feelings, and self-respect”—yes, that’s something that human rights laws often protect. The Supreme Court of British Columbia upheld the Tribunal’s decision.

In contrast, in 2003, the Alberta Human Rights Commission did not protect the dignity, feelings, or self-respect of Quintin Johnson. Johnson, a Christian, had complained to the Commission regarding a song titled “Kill the Christian” by the death metal band Deicide. The lyrics included “you are the one we despise”, “I will love watching you die”, and “kill the Christian”. The Commission dismissed Johnson’s complaint on the grounds that Deicide did not have a wide enough listening audience or popular appeal, even though the band had sold nearly 500,000 albums in the U.S. alone by that time.

So why is Earle’s artistic expression discriminatory while Deicide’s is not? What makes Earle’s expression more harmful than Deicide’s?

It’s not the content of the expression. Deicide is counselling violence against Christians, while Earle only demeaned Pardy’s sexuality. Earle may have hurt Pardy’s feelings, but Deicide’s lyrics may be vociferous enough to sustain an investigation under the “hate propaganda” section of the Criminal Code.

It’s not the context of the performances. The song “Kill the Christian” can be purchased at nearly any popular music record store. It is available online via iTunes, Amazon, and from a myriad of other online music retailers. And because of the nature of recorded music, a listener can choose to hear the song over and over again. Earle’s insults were purely transient. After he uttered them, no one, including Pardy, could hear them again.

It’s not the size of the audience. Deicide regularly tours the world, including Canada, and is free to perform music that advocates killing members of the Christian faith. Yet when Earle stood on a stage and made one-time remarks about Pardy’s sexuality, she was awarded $15,000 of Earle’s money. The complaint against Deicide was dismissed because the audience was deemed too small. Yet Earle’s audience was much smaller.

Maybe it’s who the complaint was made about? Deicide’s lyrics are written by the band’s vocalist, Glen Benton. It would be an extreme understatement to say that Benton is a controversial figure in the music industry. He has been labelled an animal abuser, a misogynist, and an anti-Christian Satanist. Earle, on the other hand, is a law-abiding amateur stand-up comic who has an otherwise untarnished reputation.

To be absolutely clear, both Deicide and Earle should have won their human rights cases. Freedom of expression and the liberty to speak freely should prevail. Further, no government official should be in the business of deciding what qualifies as artistic expression or determining the value of that expression.

Even if Pardy and Johnson suffered hurt feelings, neither one should be permitted to drag the party who hurt their feelings through a human rights process. Both Pardy and Johnson should have demonstrated their maturity by walking away. Pardy could have walked out of the club that night at the first sign of trouble. If she had, there would have been no problem. Johnson could have easily avoided Deicide’s music. Had he done so, he could not have been offended.

Any clear-headed appraisal of these cases would find Deicide’s expression more harmful than Earle’s. So if it’s not the content, the context, the audience, or the person who the complaint was made about, then what?

The lesson to be learned is that human rights laws only protect certain people—the identity of the complainant matters. Because Pardy is a lesbian, her feelings are protected by the law. As a Christian, Johnson’s are not.

Friday, 10 May 2013

On January 31, 2013, Fiona Johnstone won her discrimination case against the federal government at the Federal Court (Canada v. Johnstone). Many legal experts expect that the government will not appeal the decision even though it has the potential to adversely affect every employer in Canada. In this case, the government has failed to fully defend its own interests and has thereby failed to protect the interests of other affected Canadians.

Johnstone complained to the Canadian Human Rights Commission in 2004 because she was unable to maintain full-time employment status due to her rotating shift schedule and ensuing difficultly securing childcare. Without full-time employment status, she was ineligible for workplace benefits. The Canadian Human Rights Tribunal (Tribunal) found that due to this ineligibility, Johnstone was the victim of an employment policy that discriminated against her on the basis of family status—i.e. having children requiring childcare.

The Federal Court affirmed the Tribunal’s decision that Johnstone’s childcare schedule should have been accommodated by her government employer, the Canadian Border Service Agency (CBSA). Effectively, the decision means that Johnstone has a right to benefits and a job that fits the time constraints of her personal life. It also demonstrates that both Johnstone and the court expect others—in this case, Johnstone’s employer and fellow employees—to shoulder some of the burden of Johnstone’s life-choices.

Robyn Benson, head of the Public Service Alliance of Canada, called this ruling “a huge win for Canadian workers with family obligations”, and that “it is now clear that employers must carefully consider each and every family status accommodation request and accommodate [those requests] short of undue hardship”.

It is unsurprising that organized labour would gleefully endorse this ruling—it greatly expands employer obligations to employees. But if Benson’s assessment proves accurate, employing young workers (particularly women) with family obligations will become more complicated and costly. This is why this decision will ultimately backfire and not have the desired effect of preventing future discrimination because instead of protecting the interests of young workers with family obligations, this ruling encourages employers to find subversive and clandestine means to ignore the job applications and advancement requests of otherwise qualified young workers since hiring and promoting those workers is now associated with greater risk and higher costs.

What has been the government’s response? In cases like this, the government cannot be trusted to fully defend its own interests in court because it has an insufficient incentive to put up a good fight. Moreover, lacking sufficient incentive, the government may mount a less than rigorous defence because the financial burdens associated with an unfavourable court decision are ultimately borne by the taxpayers.

In defending its interests against Johnstone’s human rights complaint, the government advanced three arguments. First, that the term “family status”, as used in the Canadian Human Rights Act, should not be construed to include childcare obligations. Second, that Johnstone had not satisfied the prima facie test for discrimination. And third, that the tribunal lacked the authority to order the remedies it awarded to Johnstone. These arguments—although interesting to lawyers—do not truly strike at the heart of the matter, especially from a private employer’s perspective.

The government did not argue that Johnstone has no legal right to receive workplace benefits, that human rights legislation should not be used to force others to bear some of the costs of Johnstone’s personal life, that Johnstone was requesting preferential treatment, or that a victory for Johnstone would be a setback for employees with childcare obligations. Although each of these runs contrary to existing and established precedent, private employers had an interest in these arguments being advanced in court.

Of the arguments the government did advance, none addressed whether human rights legislation can or should provide the basis for a positive rights claim, or, in other words, whether the legislation could be used to force a defendant to expend his own resources to provide some good or service to the claimant. No where did the government argue that human rights legislation should not be used as a means of transferring the costs of an individual’s chosen lifestyle to other members of society—in this case, from Johnstone to her employer, her fellow CBSA employees, and ultimately, taxpayers.

A private employer would have defended himself vigorously against Johnstone’s complaint because that employer would directly bear the financial burden of losing the case. The court’s decision means that every employee with childcare obligations in circumstances similar to Johnstone’s must receive accommodation from employers short of undue hardship. This greatly complicates an employer’s task of generating an employee work shift schedule, as a particular segment of employees have effectively been given trump cards permitting them to avoid working undesirable shifts. Even more, this decision not only restricts employer freedom, it also has a negative impact upon employees who do not have childcare obligations since it is these employees who will be scheduled to work the undesirable shifts.

But the government does not bear its own financial burdens the way that a private employer does. A ruling, regardless of the result, would have no direct impact upon the financial bottom-line at the CBSA since it is operated by the government and funded by taxpayers. Further, since it is the government’s legislation that enabled Johnstone to make a complaint, government lawyers were unable to argue that the law is unconstitutional, poor policy, or that it produces absurd results. In other words, not only did the government lack incentive to defend itself fully, it may have had an interest in advancing an incomplete defence to preserve its own legislation.

There are other examples of when the government cannot mount a rigorous or complete defence. On April 26, 2010, five applicants sued the Canadian and Ontario governments for failing to develop an effective housing strategy to deal with “inadequate and high-priced housing” (Tanudjaja v. Canada). The applicants are advancing a positive rights claim asking the courts to force taxpayers to fund their lifestyles. The Attorneys General of Canada and Ontario have filed motions to dismiss the application. And like the Johnstone case, should this application proceed, both government defendants will be incapable of mounting a complete defence.

For example, one argument unavailable to the governments’ lawyers is that the governments’ own policies and regulations are the primary cause of inadequate and high-priced housing. Economists Edward L. Glaeser, Joseph Gyourko, and Raven E. Saks answer the question posed by the title of their own paper, “Why Have Housing Prices Gone Up?”, with,

“…the evidence points toward a man-made scarcity of housing in the sense that the housing supply has been constrained by government regulation as opposed to fundamental geographic limitations.”

And as long-time Governor of the Reserve Bank of New Zealand, Donald Brash said in his introduction to the 2008 Demographia survey,

“…the affordability of housing is overwhelmingly a function of just one thing, the extent to which governments place artificial restrictions on the supply of residential land.”

Although this may be a controversial proposition in the discipline of urban planning, notice that no government that already places “artificial restrictions” on residential land supply could defend itself by advancing Brash’s argument in court. To do so would be to undermine its own interventionist programs. Instead, in the Tanudjaja application, the Federal and Ontario governments will be forced to justify their levels of interference in the housing market rather than address what Brash thinks is the root of the problem.

Of course, this will suit the five applicants’ positive rights claim well. As long as the arguments before the court concern only the adequacy of the governments’ housing policies and not whether governments should interfere in the housing market, the debate will not address the fundamental problem—that “artificial restrictions” drive-up housing costs. The prevailing assumption shared by all parties to the Tanudjajaapplication will be that government interference in the housing market is justified and perhaps necessary. No one will suggest that the court undergo a thorough examination of how government intervention creates housing shortages and high prices, despite that it would be in the interests of taxpayers to do so.

The Johnstoneand Tanudjaja cases are excellent examples of litigation where the government has an insufficient incentive to defend itself rigorously and completely. In both cases, the government is defending itself against a positive rights claim. In every positive rights claim advanced in court, the claimant is asking that his or her actions be indemnified by the defendant. When such a claim is made against a private defendant, that defendant has a significant interest in defending himself since he will bear the costs of losing. But this is not true for governments.

Governments do not bear the financial burdens associated with an adverse court decision in the same way that a private defendant does. When a positive rights claim is successful against a government defendant, the costs associated with that unfavourable ruling are dispersed across a broader segment of society and ultimately borne by taxpayers (for another example, see Moore v. BC). In essence, the government merely functions as a conduit passing on to others any new burdens it receives.

There are two obvious problems resulting from this.

First, when the government is defending itself from a positive rights claim, taxpayers have an interest in the outcome because ultimately they will have to bear the cost of an unfavourable decision. If the government—for whatever reason—fails to fully and completely defend itself, taxpayer interests have not been duly represented before the court.

And second, since every court decision has a precedential value, as similar adverse decisions accumulate over time, the body of case law will become more and more skewed in favour of a claimant advancing a positive rights claim.

Friday, 22 March 2013

Last Wednesday, the Supreme Court of Canada ruled that governments are permitted to violate the right of Canadians to speak freely about issues of public importance in order to stamp out any expression they consider hateful. (SK v. Whatcott)

On appeal, the Saskatchewan Court of Queen's Bench upheld the tribunal's decision, while the provincial Court of Appeal overturned it. The Supreme Court of Canada heard the appeal in October 2011.

The Supreme Court of Canada's decision is a devastating blow to free speech and the rights of every individual Canadian. In principle, this decision means that the government can silence your speech on issues of public importance if that speech is deemed hateful. It doesn't matter if what you said was true, that it caused no one any harm, or that you never intended to say anything discriminatory - you can still be dragged into court and lose for committing a victimless crime.

In its 1990 Taylor decision, the Supreme Court of Canada reached a similar conclusion - with one salient difference. In Taylor, Justice Beverley McLachlin (as she was then) wrote a strong and clear-headed dissent. She canvassed many of the problems with hate speech prohibitions.

Hatred is an ambiguous and emotionally charged term, capable of a wide range of meanings among different people. Incapable of precise definition, it inevitably functions as a proxy for the personal and political views of the judiciary. Further, a successful hate speech prosecution requires no proof of actual harm or intent to discriminate, and truth is no defence. These are serious, irremediable flaws.

Fast-forward to 2013. Unlike Taylor, the Whatcott decision is unanimous and monolithic - there is no dissent. The Supreme Court of Canada has closed ranks and will no longer broach alternatives. This means that McLachlin's Taylor dissent has effectively been redacted, leaving us with muddled confusion.

The problems canvassed in Taylor are not resolved in Whatcott - all we get is the Supreme Court of Canada's undivided assertion that no problems exist. Does that imply that there never was a problem? What has happened in the intervening 23 years to change McLachlin's mind?

It wasn't always this way. The Supreme Court of Canada once recognized that the freedom to express unpopular and even offensive ideas is of foundational importance to a free and democratic society.

[Freedom of expression] is one of the fundamental concepts that have formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.

In other words, the continued existence and thriving of our free society is dependent upon the right of each individual to freely express his or her ideas without fear of reprisal.

There's one simple and ironic fact that cannot be overlooked in all of this.

If Whatcott is on a hate campaign, Saskatchewan's hate speech prohibition has provided him with a powerful means to disseminate his views. Each judicial decision has reproduced and circulated his materials. Had no complaint been made about Whatcott's flyers in 2001 and 2002, they would have faded into obscurity and this marginalized, bigoted, fundamentalist would not have received national media coverage.

At this stage, it's entirely likely that Whatcott will be elevated to the status of folk hero by those who share his prejudices. Instead of facing a legal prosecution, lending credence to the appearance of martyrdom, Whatcott should have been ignored or debated. It's best not to silence bigots - let them speak, freely. As the old proverb says, even a fool who keeps silent is considered wise.

The Supreme Court of Canada has shown itself unwilling to uphold the right of Canadians to express their views without worry of a state prosecution. The best answer to this problem has always been legislative. Canada's hate speech laws were enacted by governments and can be repealed at any time by those same governments. It's time to hold our politicians' feet to the proverbial fire for the good of all Canadians.

This piece was originally published in the Calgary Herald on March 4, 2013

Freedom of expression is not, however, a creature of the Charter. It is one of the fundamental concepts that has formed the basis for the historical development of the political, social and educational institutions of western society. Representative democracy, as we know it today, which is in great part the product of free expression and discussion of varying ideas, depends upon its maintenance and protection.

Now that you know all this, doesn't it make you wonder what Dean Steacy (the lead Canadian Human Rights Commission investigator in the Marc Lemire case) meant when he said,

Freedom of speech is an American concept, so I don't give it any value... It's not my job to give value to an American concept.

Actually, Mr. Steacy, freedom of speech is a fundamental Canadian value that the Supreme Court of the land has ruled responsible for the maintenance and protection of Canadian society.

Tuesday, 12 February 2013

The National Post reported on December 19, 2012 that a disgruntled Saskatoon resident is about to launch a human rights complaint against the city of Saskatoon for placing the words “Merry Christmas” on its buses.

The media coverage surrounding this issue has made me realize that many Canadians are confused about whether the Charter guarantees the separation of church and state. It does not. Further, our constitution lacks a clear equivalent to the most famous of such constitutional protections—the American establishment clause.

The establishment clause is a phrase in the 1st Amendment of the U.S. Bill of Rights that says "Congress shall make no law respecting an establishment of religion". Canada has no equivalent constitutional protection.

Although the linked National Post article above focuses on the up-coming human rights complaint, on the Charles Adler show on the afternoon of December 18, 2012, Mr. Solo implied that Canada has constitutional protection regarding the separation of church and state.

If I had to guess, I would say that Mr. Solo, and other Canadians like him, are confused because they have watched US legal dramas on TV and assume that, like the U.S., Canada has a similar separation of church and state. We do not. Consider this plain and simple fact: the Queen remains the Head of State in Canada even though she is the Supreme Governor of the Church of England.

On the other hand, section 2 of the Charter does guarantee "freedom of religion", and the courts have interpreted this to include a right to be free from religion.

But this right to be free from religion is subtly, yet significantly, different from a separation of church and state. Freedom of religion under the Charter means that Canadians are free to practice their religions in a non-harmful fashion (e.g. the Multanicase), while freedom from religion means that Canadians cannot be forced to adopt a religious practice (e.g. the Big M Drug Martcase).